Opinion
No. 05-1170
Filed September 14, 2005
Appeal from the Iowa District Court for Woodbury County, Mary J. Sokolovske, Judge.
A father appeals from the order terminating his parental rights to his daughter. AFFIRMED.
Patrick H. Tott, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Dewey Sloan, Assistant County Attorney, for appellee-State.
Lesley Rynell of the Juvenile Law Center, Sioux City, guardian ad litem for minor child.
Considered by Mahan, P.J., and Hecht and Vaitheswaran, JJ.
Randy is the father of Shelby, who was born in October of 2002. On October 20, 2004, Shelby was removed from the care of her mother, Jessica, after it was alleged Jessica was smoking marijuana on a daily basis. At that time, Randy was incarcerated following a probation revocation. Shelby was later adjudicated to be a child in need of assistance pursuant to Iowa Code sections 232.2(6)(b), (c)(2), and (n) (2003). Randy remained incarcerated. On May 9, 2005, the State filed a petition seeking to terminate Randy's parental rights to Shelby. Following a later hearing, the court terminated Randy's parental rights under sections 232.116(1)(b), (d), (e), (h) and (l) (2005). Randy appeals.
The court also terminated Jessica's parental rights. She did not appeal from this order.
We review these termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). While the district court terminated the parental rights on more than one statutory ground, we will affirm if at least one ground has been proved by clear and convincing evidence. In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct. App. 1995). Our primary concern is the best interests of the child. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
On appeal, Randy argues clear and convincing evidence does not support termination under any of the provisions cited by the district court. Upon our de novo review of the record, we conclude the juvenile court properly terminated Randy's parental rights under Iowa Code section 232.116(1)(h), which requires proof that the child is three or younger, has been adjudicated CINA, has been removed for six of the last twelve months, and cannot be returned to Randy's custody.
Randy has a wide-ranging and vast criminal history, with offenses ranging from burglary, to operating while intoxicated and drug offenses. At the time of the termination hearing, Randy was incarcerated after his parole was revoked for providing a urine sample that tested positive for marijuana. While he initially stood to be eligible for parole in May of 2005, that time was extended to December of 2005 after Randy was alleged to have been making and drinking alcohol in his cell.
While Randy makes protestations of being a changed man, ready to accept parental responsibilities, we are not persuaded. As noted, Randy's eligibility for parole was extended by six months after he was caught making and drinking alcohol during his most recent incarceration. While serving a previous incarceration term, Randy completed anger management classes, victim empathy classes, and substance abuse treatment; however, almost immediately upon his release, Randy was again arrested for possession of marijuana. This recidivist history does not reflect the choices and actions of a parent who is ready to provide the essential care for and supervision of a young child. See In re L.L., 459 N.W.2d 489, 493 (Iowa 1993) (recognizing that a parent's past performance may be indicative of the type of future care that parent can offer a child). Accordingly, we find clear and convincing evidence that Shelby cannot be returned to Randy's custody as contemplated in Iowa Code section 232.116(1)(h)(4).